Monthly Archives: September 2011

California estate planning at it’s simplest is about planning for you and your spouse. However, in many cases, the bigger benefit in estate planning is how you can leave things for your children, grandchildren and other subsequent generations with advantages you can’t set up for yourselves.

You want to avoid estate taxes, avoid capital gains taxes, avoid probate costs, avoid delays, avoid burocracy, and in general leave things for your kids in a clean and easy maner. The fact is that with proper estate planning you can leave stuff for your kids in a better way than you can do for yourselves!

There is no “magic trust” in California. A magic trust is a term I use to describe the ultimate creditor and liability protected trust. Basically your assets would be immune from creditors if the magic trust existed. You could drive like a maniac and not worry about getting sued after you got in a car accident. There is no such thing. However, you can set up a trust for your children and future generations that has pretty good creditor protection. Maybe not impervious to lawsuits but certainly well protected. While you certainly do not want to set something up that will cause your children to be reckless you probably do want to give them all the protections the law allows.

Leaving assets in trust, for life, if the terms are right can do this. At a minimum you give them protection which would allow them to negotiate with their creditors and reduce any payouts. Additionally you can give them protection should they get divorced to protect your family money and keep it in your family. Also, if set up right, you can avoid unnecessary estate taxes without causing the generation skipping tax to take hold against your money.

Often we set up trusts for children and grandchildren that allow them to become their own trustee at a suitable age (between 25 and 40 is common), have complete control over investment choices, have complete control to give it away at their death, and spend it all if they want. Basically it’s as if it’s their money. However, keeping it in the trust set up by you can give them some creditor protection they can not set up for themselves.

Talk to a qualified California estate planning attorney about how you can protect yourself and, even more so, protect your children and grandchildren.

I have blogged several times before about the California Heggstad petition. It’s a way to get an asset into a trust after death without going through a full probate. However, I had to think about it how many different ways I have seen people ask about this petition? The official case, that generated the “law” is called THE ESTATE OF HEGGSTAD. I pronounce it “heg-stad” but I have heard other similar pronunciations. However, let’s see how many ways we can write it: heggstad, hegstead, heggstead, hogshead, hegstid, hodgested, hagstead, hagsted, hegsted, hegstand, hegstan, hedgehog, hedgeand, hedgestad, hedgestead and how many more can we list!? Let me know if you have any thoughts on names for this. Also, let me know if you have questions on this great law whatever you call it!

As stated there a Heggstad petition is a way to get property (real and personal) into your California trust AFTER death. It can be used for almost any assets: bank accounts, stock accounts, stock certificates, bonds, partnership interests, LLC interests, timeshares, houses, real estate, real property, condos, townhouses and more. I should clarify that for deeded assets (like the last 6 named above) the property has to be in California. Getting another state to honor a California Heggstad order may be tough. It’s possible it can be done but there are probably better options.

Today I want to focus on Heggstad petitions and what kind of intent you should look for. It’s different depending on if the asset is real property or personal property. The standards for real property are stricter. That is, you need to convince the probate Court Judge that the decedent had the INTENT to have the asset in their trust when they died. That is they owned an asset and for whatever reason it wasn’t properly titled in their trust when they died.

With real property it needs to specific written intent. In the actual Estate of Heggstad case the real property was listed on the attached schedule of assets and that schedule was signed. I have seen others where the property is specifically listed in the document, by address or other description, and that is treated as being good intent. The key with real estate is specific mention of the property in the trust or in another document that connects to the trust in some way. I have a case right now where my clients tell me mom told her Realtor she wanted the property in the trust. The odds are significant that the Court would not approve a Heggstad based on that oral evidence. Needs to be in writing!

With personal property the rules are looser. It can be listed on the schedule of assets. In most Courts it can also be shown by a general statement of intent that all assets are to be in the trust. In my estate planning practice we generally prepare a “general transfer” document to help with this problem. It could be a letter to the stockbroker asking them to put the account into the trust. Basically there are a lot of ways to show the intent.

The key, beit real or personal property, is convincing the Court of the decedent’s intent. The more information you can provide the better. You do not want to just state that the decedent intended it to be in the trust. You want to show WHY the decedent intended it to be in trust. Show what actions they took to demonstrate their desire to put that asset in the trust. I like to provide written declarations by people with knowledge, copies of documents, and basically anything I can add that might help push the Judge over the edge to agree with our request. The Judge generally wants to agree with you because they don’t want to force you into a probate but they also want to make sure they are complying with the law.

A Heggstad petition might sound simple but it is a complex trust petition. It should be handled by someone who does them a lot and is familiar with the variables and possibilities.

Ok you have set up your California revocable “living” or “loving” trust. It’s to make sure all your assets have been transferred to your trust properly. Last week we talked about your real estate including time shares. Now let’s talk about your bank and other financial accounts. Yes, you should transfer all your bank accounts to your trust. This should be very easy and in almost all cases not require new bank account numbers. Additionally, in almost all cases, you can keep using your same checks. It’s a minor change now but major when you are incapacitated or deceased. Thus it’s important!

The easiest thing to do is to go to your bank if you can. Take a copy of your trust along with a copy of your certified extract (or abstract) of trust. Some banks like copies of certain pages of the trust or a copy of the extract. Others have their own trust certification form for you to fill out. Handling banking transactions has become more and more difficult in recent years. The banks point to the Patriot Act for this. For your information I have pasted a brief summary of the Patriot Act immediately below from Wiki. At the bottom of this post is a bunch of information I compiled from a couple different government websites if you want more info. “The USA PATRIOT Act (commonly known as the “Patriot Act”) is an Act of the U.S. Congress that was signed into law by President George W. Bush on October 26, 2001. The title of the act is a ten letter acronym (USA PATRIOT) that stands for: Uniting (and) Strengthening America (by) Providing Appropriate Tools Required (to) Intercept (and) Obstruct Terrorism Act of 2001. The act, a response to the terrorist attacks of September 11th, dramatically reduced restrictions on law enforcement agencies’ ability to search telephone, e-mail communications, medical, financial, and other records; eased restrictions on foreign intelligence gathering within the United States; expanded the Secretary of the Treasury’s authority to regulate financial transactions, particularly those involving foreign individuals and entities; and broadened the discretion of law enforcement and immigration authorities in detaining and deporting immigrants suspected of terrorism-related acts. The act also expanded the definition of terrorism to include domestic terrorism, thus enlarging the number of activities to which the USA PATRIOT Act’s expanded law enforcement powers can be applied.”

As you can see the Patriot Act doesn’t have a lot to do with transferring your bank accounts to your new trust. However, that’s what the banks always point to. Anyway, go into the branch to make the change if you can. If you can not then check the bank’s website to see if they have a form for transferring to a trust. Some banks have forms and some don’t. Using their forms is always preferable and makes it more likely that your account will be properly “in” your trust.

If you can not go to the bank to fill out forms then call them and make arrangements. If your bank is one of those rare breeds that does not allow ownership by a trust you need to consider if the extra interest that they presumably pay, or incredible customer service, is worth creating a probate after death. That’s a decision only you can answer!

Please note this is:

– NOT a payable on death designation;

– NOT a Totten Trust or bank trust account;

– NOT an estate account.

It’s simply a regular bank account that uses the name of your new trust. For example, if John Doe just created the Doe Doe Family Trust his account should be as follows in the bank records:

“John Doe, Trustee of the Doe Doe Family Trust, Dated September 28, 2012.”

As stated above most banks let you continue to use your same old checks that do not reference the name of the trust. There are a couple exceptions but it’s rare.

I should make clear the rules for “bank accounts” are the same for credit unions, savings and loans, thrifts, stock brokers, financial institutions and basically ANY asset account you have.

ALL of your assets should generally be in your trust. I would say that in California leaving cars and other vehicles out of the trust is normal but otherwise all assets should be in the trust.

More information about the Patriot Act below.

Contact me with any questions about getting your accounts into your trust. -John

The Department of the Treasury and the federal banking, thrift and credit union regulatory agencies have jointly issued a final rule to implement Section 326 of the USA PATRIOT Act. This section requires financial institutions to implement a customer identification program to verify the identity of customers opening new accounts.

The U.S. Department of the Treasury, through the Financial Crimes Enforcement Network (FinCEN); the Federal Deposit Insurance Corporation (FDIC); the Board of Governors of the Federal Reserve System; the Office of the Comptroller of the Currency; the Office of Thrift Supervision; and the National Credit Union Administration have jointly issued the attached final rule adding section 103.121 – “Customer Identification Programs for Banks, Savings Associations, and Credit Unions” – to the Bank Secrecy Act regulations.

The final rule implements section 326 of the USA PATRIOT Act of 2001, which requires financial institutions to implement a customer identification program to verify the identities of customers opening new accounts.

The new section 103.121 of the Bank Secrecy Act regulations requires that financial institutions:

implement a written risk-based customer identification program;

maintain records, including customer information and methods, used to verify customers’ identities; and

compare the names of new customers against government lists of known or suspected terrorists or terrorist organizations when such lists are provided by their federal regulator.

The final rule, which applies to customers opening new accounts, also permits a financial institution to reasonably rely on another regulated U.S. financial institution to perform any part of the financial institution’s customer identification program.

The final rule takes effect on June 9, 2003; however, financial institutions have until October 1, 2003, to implement a customer identification program. The FDIC is amending its examination procedures to address the new requirements.

For further information, you may contact the FDIC’s Special Activities Section, Division of Supervision and Consumer Protection, at (202) 898-3981.

New Proof of Identity Required When Opening Accounts Don’t be surprised if the next time you open a deposit, loan or other account at a bank or other financial institution you have to spend additional time proving your identity. That’s because the U.S. Treasury Department and federal financial regulatory agencies (including the FDIC) have jointly issued new rules for customer identification that implement the USA PATRIOT Act of 2001, a law intended to help fight terrorism.

Under the rules, which became mandatory October 1, 2003, financial institutions generally are required to ask each customer for their name, address, date of birth and tax identification number (usually a Social Security number) when opening a new account. Foreign nationals without a U.S. taxpayer ID number could provide a similar government-issued identification number, such as a passport number.

You also will be asked to provide documentation, such as a driver’s license or passport, “so the financial institution can verify that you are who you say you are,” says Karen Currie, an FDIC fraud investigator and anti-money laundering specialist. The institution also can verify your identity through alternate methods, such as your credit report from a credit bureau. Identification procedures may vary depending upon the type of account you are opening and the policies of your financial institution. For example, some institutions may require you to provide copies of certain documents through the mail if you are not opening an account in person. Finally, the financial institution must check if your name appears on any list of suspected terrorists or terrorist organizations.

“These new procedures are designed to prevent money laundering and other crimes, such as identity theft and account fraud that terrorists commit to fund their operations,” Currie adds. “We know you’re usually in a hurry to fill out all the paperwork and to complete your financial transactions, but with such an important requirement designed to protect the public, your patience is greatly appreciated.

USA PATRIOT Act

The official title of the USA PATRIOT Act is “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001.” To view this law in its entirety, click on the USA PATRIOT Act link below.

The purpose of the USA PATRIOT Act is to deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and other purposes, some of which include:

To strengthen U.S. measures to prevent, detect and prosecute international money laundering and financing of terrorism;

To subject to special scrutiny foreign jurisdictions, foreign financial institutions, and classes of international transactions or types of accounts that are susceptible to criminal abuse;

To require all appropriate elements of the financial services industry to report potential money laundering;

To strengthen measures to prevent use of the U.S. financial system for personal gain by corrupt foreign officials and facilitate repatriation of stolen assets to the citizens of countries to whom such assets belong.

Below is a brief, non-comprehensive overview of the sections of the USA PATRIOT Act that may affect financial institutions.

Section 311: Special Measures for Jurisdictions, Financial Institutions, or International Transactions of Primary Money Laundering Concern

This Section allows for identifying customers using correspondent accounts, including obtaining information comparable to information obtained on domestic customers and prohibiting or imposing conditions on the opening or maintaining in the U.S. of correspondent or payable-through accounts for a foreign banking institution.

To prevent foreign shell banks, which are generally not subject to regulation and considered to present an unreasonable risk of involvement in money laundering or terrorist financing, from having access to the U.S. financial system. Banks and broker-dealers are prohibited from having correspondent accounts for any foreign bank that does not have a physical presence in any country. Additionally, they are required to take reasonable steps to ensure their correspondent accounts are not used to indirectly provide correspondent services to such banks.

Section 314: Cooperative Efforts to Deter Money Laundering

Section 314 helps law enforcement identify, disrupt, and prevent terrorist acts and money laundering activities by encouraging further cooperation among law enforcement, regulators, and financial institutions to share information regarding those suspected of being involved in terrorism or money laundering.

To facilitate the government’s ability to seize illicit funds of individuals and entities located in foreign countries by authorizing the Attorney General or the Secretary of the Treasury to issue a summons or subpoena to any foreign bank that maintains a correspondent account in the U.S. for records related to such accounts, including records outside the U.S. relating to the deposit of funds into the foreign bank. This Section also requires U.S. banks to maintain records identifying an agent for service of legal process for its correspondent accounts.

Section 325: Concentration Accounts at Financial Institutions

Allows the Secretary of the Treasury to issue regulations governing maintenance of concentration accounts by financial institutions to ensure such accounts are not used to obscure the identity of the customer who is the direct or beneficial owner of the funds being moved through the account.

Section 326: Verification of Identification

Prescribes regulations establishing minimum standards for financial institutions and their customers regarding the identity of a customer that shall apply with the opening of an account at the financial institution.

This Section expands immunity from liability for reporting suspicious activities and expands prohibition against notification to individuals of SAR filing. No officer or employee of federal, state, local, tribal, or territorial governments within the U.S., having knowledge that such report was made may disclose to any person involved in the transaction that it has been reported except as necessary to fulfill the official duties of such officer or employee.

Section 352: Anti-Money Laundering Programs

Requires financial institutions to establish anti-money laundering programs, which at a minimum must include: the development of internal policies, procedures and controls; designation of a compliance officer; an ongoing employee training program; and an independent audit function to test programs.

Required the Secretary to consult with the Securities Exchange Commission and the Board of Governors of the Federal Reserve to publish proposed regulations in the Federal Register before January 1, 2002, requiring brokers and dealers registered with the Securities Exchange Commission to submit suspicious activity reports under the Bank Secrecy Act.

On TV an attorney just picks up the file and heads to the Courthouse right? They usually have no other cases so it makes it very easy to focus on that one case, with one opposing attorney, the one Judge, the one court room at the one courthouse. In real life attorneys have a lot of clients (hopefully). As an attorney with a successful probate law practice I have a lot of clients in probates, trust petitions, and other probate court matters. I know the basics on every single file I have but I don’t know all the details. This is where preparing for Court comes in….

Most probate court calendars are in the morning. 9:00 seems to be a very popular time around the state; although a few are 8:30 and a few others are 9:30. Having said that, today I have a probate Court hearing at 1:00 in the new courthouse in Roseville of Placer county; the Santucci Justice Center. Thus, I normally prepare for Court the afternoon before. This morning I will be preparing for my 1:00 hearing.

Today’s matter is a final accounting, or final petition, in a litigated probate that has gone on for about 3 years. I represent the Administrator of the estate who came in after about a year. It’s a long story, and not relevant for today’s blog post, but basically a will was found and then world war III broke out. This is all in the public record, at the courthouse, so I am speaking of any private matters. My client’s job was to protect the estate during the litigation while the two sides litigated the issues. With this as a background the accounting today is more complex than normal.

The file is about 4 feet high, stacked on my floor, and no I will not go through all of those papers before Court today. Rather I will go through the main documents. I will review the accounting petition to refresh myself on the main facts in case the Judge has any questions. There are a few specific areas of the accounting I will focus on to make sure I have a really good understanding of them. I will also review the proof of service, on the Notice of Hearing form, to see who was put on notice to remind me of the players in this case. If I have any questions I may contact my client but that’s rare as usually my last review is just that refresher for me to be ready at Court.

This review is 10 or 15 minutes in an easy case and an hour or more in a complex case. The key is putting this one probate case at the forefront of my mind this afternoon at 1:00 to make sure I am ready if the Judge has any questions for me.

I know I have filed everything I was supposed to so I am confident everything is in order.

“Michael Jackson has been dead less than 24 hours and there are dozens of articles on the internet about this already. He is in debt $400 million or $500 million or who knows how much…. However, he has assets… worth $500 million or $1 billion… or really nobody has any clue on earth! If he has no will or trust then his assets go to his kids… assuming he is not married… oh ya, and assuming he has assets. He owns most of the Beatle’s songs, right? Plus, his own songs, I assume!? Though I could never moonwallk I bought several of his albums starting in 1979 when I bought the Off the Wall album. That is one of the best record albums of all time! Really, go listen to it again! Every song is a toe tapper! Ok, back to his estate…. Hopefully he has a will laying out who the guardian should be for his kids. If not, that could be a huge fight. His kid’s guardian, whoever that will end up being, could seek a family allowance through the probate Court. A family allowance for them could be $100,000 per month or more… easily! Once the probate Court, and a TEAM of attorneys, sorts everything out then what? If no trust in place then the Court will set up a guardianship eventually. A guardianship will ultimately be established to protect the money but guardianships end at age 18. Oh my oh my… do you think his kids, Prince, Paris and Michael II will get a few hundred million when the turn 18? Will they be selling the Beatles songs so they can keep up the ridicilous lifestyle that pops accustomed them to!? Obviously this story is yet to be written. The key for YOU is for your estate plan to not end up like Michael Jackson’s. Get your estate plan done now and get it done right. Hire a certified specialist in estate planning law. We will craft a custom estate plan for you so that your assets can be distributed without the headaches, and potential limelight, of probate Court.”

Now a year later it’s still a mess. Yes, some issues have been worked out. The kids are living with the grandparents with no legal problems that I am aware of. There was recently a settlement in regard to one portion of his estate, the estate has sold some significant assets, and now the doctor is on trial. However, 100% of this mess could have been avoided by properly setting up his estate plan before he died. I could envision a combination of revocable trusts, irrevocable life insurance trusts, irrevocable house trusts, GRATs, family limited partnerships, Nevada LLC’s, and many more tools Michael could have used. Oh ya, and a basic will naming guardians of the kids. The key would be PLANNING AHEAD!

If Michael had planned properly he could have avoided a ton of problems for his family.

Currently you can pass up to $100,000 after death without going through probate. California Probate Code 13100 provides the backbone of that. It’s pasted below. I have heard the California legislature is changing that to $150,000 effective January 1, 2012. Let’s see….

California Probate Code Section 13100
Excluding the property described in Section 13050, if the
gross value of the decedent’s real and personal property in this
state does not exceed one hundred thousand dollars ($100,000) and if
40 days have elapsed since the death of the decedent, the successor
of the decedent may, without procuring letters of administration or
awaiting probate of the will, do any of the following with respect to
one or more particular items of property:
(a) Collect any particular item of property that is money due the
decedent.
(b) Receive any particular item of property that is tangible
personal property of the decedent.
(c) Have any particular item of property that is evidence of a
debt, obligation, interest, right, security, or chose in action
belonging to the decedent transferred, whether or not secured by a
lien on real property.

Everybody knows about legalzoom.com and other legal document drafting companies. They create wills, powers of attorney, living wills and even trusts. They may actually work out fine for you and your loved ones… we will find out after you die.

Another similar option is the California statutory will. It’s something not a lot of people know about. It’s basically a fill in the blank will that is laid out in the California Probate Code. The relevant sections are pasted below for your reference.

I would not use any of these as your final plan but rather as a temporary fix until you can get a proper attorney drafted document. As stated above it may work out just fine. As a Certified Specialist in Estate Planning, Trust and Probate Law I am much more comfortable with an attorney drafted will. However, consider this as an option if you are leaving for the airport in an hour or so! Prepare it, sign it, date it and have two witnesses sign it. The probate code, on-line, does not provide the text of the will so you need to find it somewhere but I am sure it’s out there on the WWW. I will try to get it on my website this week.

Contact me with any questions. -John

California Probate Code Section 6240. The following is the California Statutory Will form:

QUESTIONS AND ANSWERS ABOUT THIS CALIFORNIA STATUTORY
WILL
The following information, in question and answer form, is not a
part of the California Statutory Will. It is designed to help you
understand about Wills and to decide if this Will meets your needs.
This Will is in a simple form. The complete text of each paragraph of
this Will is printed at the end of the Will.

1. What happens if I die without a Will If you die without a
Will, what you own (your “assets”) in your name alone will be divided
among your spouse, domestic partner, children, or other relatives
according to state law. The court will appoint a relative to collect
and distribute your assets.
2. What can a Will do for me In a Will you may designate who will
receive your assets at your death. You may designate someone (called
an “executor”) to appear before the court, collect your assets, pay
your debts and taxes, and distribute your assets as you specify. You
may nominate someone (called a “guardian”) to raise your children who
are under age 18. You may designate someone (called a “custodian”)
to manage assets for your children until they reach any age from 18
to 25.
3. Does a Will avoid probate No. With or without a Will, assets
in your name alone usually go through the court probate process. The
court’s first job is to determine if your Will is valid.
4. What is community property Can I give away my share in my Will
If you are married and you or your spouse earned money during your
marriage from work and wages, that money (and the assets bought with
it) is community property. Your Will can only give away your one-half
of community property. Your Will cannot give away your spouse’s
one-half of community property.
5. Does my Will give away all of my assets Do all assets go
through probate No. Money in a joint tenancy bank account
automatically belongs to the other named owner without probate. If
your spouse, domestic partner, or child is on the deed to your house
as a joint tenant, the house automatically passes to him or her. Life
insurance and retirement plan benefits may pass directly to the
named beneficiary. A Will does not necessarily control how these
types of “nonprobate” assets pass at your death.
6. Are there different kinds of Wills Yes. There are handwritten
Wills, typewritten Wills, attorney-prepared Wills, and statutory
Wills. All are valid if done precisely as the law requires. You
should see a lawyer if you do not want to use this Statutory Will or
if you do not understand this form.
7. Who may use this Will This Will is based on California law. It
is designed only for California residents. You may use this form if
you are single, married, a member of a domestic partnership, or
divorced. You must be age 18 or older and of sound mind.
8. Are there any reasons why I should NOT use this Statutory Will
Yes. This is a simple Will. It is not designed to reduce death taxes
or other taxes. Talk to a lawyer to do tax planning, especially if
(i) your assets will be worth more than $600,000 or the current
amount excluded from estate tax under federal law at your death, (ii)
you own business-related assets, (iii) you want to create a trust
fund for your children’s education or other purposes, (iv) you own
assets in some other state, (v) you want to disinherit your spouse,
domestic partner, or descendants, or (vi) you have valuable interests
in pension or profit-sharing plans. You should talk to a lawyer who
knows about estate planning if this Will does not meet your needs.
This Will treats most adopted children like natural children. You
should talk to a lawyer if you have stepchildren or foster children
whom you have not adopted.
9. May I add or cross out any words on this Will No. If you do,
the Will may be invalid or the court may ignore the crossed out or
added words. You may only fill in the blanks. You may amend this Will
by a separate document (called a codicil). Talk to a lawyer if you
want to do something with your assets which is not allowed in this
form.
10. May I change my Will Yes. A Will is not effective until you
die. You may make and sign a new Will. You may change your Will at
any time, but only by an amendment (called a codicil). You can give
away or sell your assets before your death. Your Will only acts on
what you own at death.
11. Where should I keep my Will After you and the witnesses sign
the Will, keep your Will in your safe deposit box or other safe
place. You should tell trusted family members where your Will is
kept.
12. When should I change my Will You should make and sign a new
Will if you marry, divorce, or terminate your domestic partnership
after you sign this Will. Divorce, annulment, or termination of a
domestic partnership automatically cancels all property stated to
pass to a former husband, wife, or domestic partner under this Will,
and revokes the designation of a former spouse or domestic partner as
executor, custodian, or guardian. You should sign a new Will when
you have more children, or if your spouse or a child dies, or a
domestic partner dies or marries. You may want to change your Will if
there is a large change in the value of your assets. You may also
want to change your Will if you enter a domestic partnership or your
domestic partnership has been terminated after you sign this Will.
13. What can I do if I do not understand something in this Will
If there is anything in this Will you do not understand, ask a lawyer
to explain it to you.
14. What is an executor An “executor” is the person you name to
collect your assets, pay your debts and taxes, and distribute your
assets as the court directs. It may be a person or it may be a
qualified bank or trust company.
15. Should I require a bond You may require that an executor post
a “bond.” A bond is a form of insurance to replace assets that may
be mismanaged or stolen by the executor. The cost of the bond is paid
from the estate’s assets.
16. What is a guardian Do I need to designate one If you have
children under age 18, you should designate a guardian of their
“persons” to raise them.
17. What is a custodian Do I need to designate one A “custodian”
is a person you may designate to manage assets for someone
(including a child) who is under the age of 25 and who receives
assets under your Will. The custodian manages the assets and pays as
much as the custodian determines is proper for health, support,
maintenance, and education. The custodian delivers what is left to
the person when the person reaches the age you choose (from 18 to
25). No bond is required of a custodian.
18. Should I ask people if they are willing to serve before I
designate them as executor, guardian, or custodian Probably yes.
Some people and banks and trust companies may not consent to serve or
may not be qualified to act.
19. What happens if I make a gift in this Will to someone and that
person dies before I do A person must survive you by 120 hours to
take a gift under this Will. If that person does not, then the gift
fails and goes with the rest of your assets. If the person who does
not survive you is a relative of yours or your spouse, then certain
assets may go to the relative’s descendants.
20. What is a trust There are many kinds of trusts, including
trusts created by Wills (called “testamentary trusts”) and trusts
created during your lifetime (called “revocable living trusts”). Both
kinds of trusts are long-term arrangements in which a manager
(called a “trustee”) invests and manages assets for someone (called a
“beneficiary”) on the terms you specify. Trusts are too complicated
to be used in this Statutory Will. You should see a lawyer if you
want to create a trust.
21. What is a domestic partner You have a domestic partner if you
have met certain legal requirements and filed a form entitled
“Declaration of Domestic Partnership” with the Secretary of State.
Notwithstanding Section 299.6 of the Family Code, if you have not
filed a Declaration of Domestic Partnership with the Secretary of
State, you do not meet the required definition and should not use the
section of the Statutory Will form that refers to domestic partners
even if you have registered your domestic partnership with another
governmental entity. If you are unsure if you have a domestic partner
or if your domestic partnership meets the required definition,
please contact the Secretary of State’s office.

INSTRUCTIONS
1. READ THE WILL. Read the whole Will first. If you do not
understand something, ask a lawyer to explain it to you.
2. FILL IN THE BLANKS. Fill in the blanks. Follow the
instructions in the form carefully. Do not add any words to the Will
(except for filling in blanks) or cross out any words.
3. DATE AND SIGN THE WILL AND HAVE TWO WITNESSES SIGN IT. Date
and sign the Will and have two witnesses sign it. You and the
witnesses should read and follow the Notice to Witnesses found at the
end of this Will.
*You do not need to have this document notarized. Notarization
will not fulfill the witness requirement.

* * * * * * * * * * * * * * * * * * * * * * * * * *

NOTICE OF INCOMPLETE TEXT: The California Statutory Will
appears in the hard-copy publication of the chaptered
bill. See Sec. 1 of Chapter 88, Statutes of 2010.

* * * * * * * * * * * * * * * * * * * * * * * * * *

6241. The mandatory clauses of the California statutory will form
are as follows:
(a) Intestate Disposition. If the testator has not made an
effective disposition of the residuary estate, the executor shall
distribute it to the testator’s heirs at law, their identities and
respective shares to be determined according to the laws of the State
of California in effect on the date of the testator’s death relating
to intestate succession of property not acquired from a predeceased
spouse.
(b) Powers of Executor.
(1) In addition to any powers now or hereafter conferred upon
executors by law, including all powers granted under the Independent
Administration of Estates Act, the executor shall have the power to:
(A) Sell estate assets at public or private sale, for cash or on
credit terms.
(B) Lease estate assets without restriction as to duration.
(C) Invest any surplus moneys of the estate in real or personal
property, as the executor deems advisable.
(2) The executor may distribute estate assets otherwise
distributable to a minor beneficiary to one of the following:
(A) The guardian of the minor’s person or estate.
(B) Any adult person with whom the minor resides and who has the
care, custody, or control of the minor.
(C) A custodian of the minor under the Uniform Transfers to Minors
Act as designated in the California statutory will form.
The executor is free of liability and is discharged from any
further accountability for distributing assets in compliance with the
provisions of this paragraph.
(3) On any distribution of assets from the estate, the executor
shall have the discretion to partition, allot, and distribute the
assets in the following manner:
(A) In kind, including undivided interest in an asset or in any
part of it.
(B) Partly in cash and partly in kind.
(C) Entirely in cash.
If a distribution is being made to more than one beneficiary, the
executor shall have the discretion to distribute assets among them on
a pro rata or non pro rata basis, with the assets valued as of the
date of distribution.
(c) Powers of Guardian. A guardian of the person nominated in the
California statutory will shall have the same authority with respect
to the person of the ward as a parent having legal custody of a child
would have. All powers granted to guardians in this paragraph may be
exercised without court authorization.

6242. (a) Except as specifically provided in this chapter, a
California statutory will shall include only the texts of the
property disposition clauses and the mandatory clauses as they exist
on the day the California statutory will is executed.
(b) Sections 6205, 6206, and 6227 apply to every California
statutory will, including those executed before January 1, 1985.
Section 6211 applies only to California statutory wills executed
after July 1, 1991.
(c) Notwithstanding Section 6222, and except as provided in
subdivision (b), a California statutory will is governed by the law
that applied prior to January 1, 1992, if the California statutory
will is executed on a form that (1) was prepared for use under former
Sections 56 to 56.14, inclusive, or former Sections 6200 to 6248,
inclusive, of the Probate Code, and (2) satisfied the requirements of
law that applied prior to January 1, 1992.
(d) A California statutory will does not fail to satisfy the
requirements of subdivision (a) merely because the will is executed
on a form that incorporates the mandatory clauses of Section 6241
that refer to former Section 1120.2. If the will incorporates the
mandatory clauses with a reference to former Section 1120.2, the
trustee has the powers listed in Article 2 (commencing with Section
16220) of Chapter 2 of Part 4 of Division 9.

6243. Except as specifically provided in this chapter, the general
law of California applies to a California statutory will.

Another option if the California statutory will is too complicated is simply doing a holographic, or handwritten, will. The relevant California probate code section is pasted below. A handwritten will is completely valid. It just needs to be in your own handwriting, signed and dated. No witnesses required. Obviously, this is only for very simple situations and only a temporary answer.

California Probate Code 6110. (a) Except as provided in this part, a will shall be in
writing and satisfy the requirements of this section.
(b) The will shall be signed by one of the following:
(1) By the testator.
(2) In the testator’s name by some other person in the testator’s
presence and by the testator’s direction.
(3) By a conservator pursuant to a court order to make a will
under Section 2580.
(c) (1) Except as provided in paragraph (2), the will shall be
witnessed by being signed, during the testator’s lifetime, by at
least two persons each of whom (A) being present at the same time,
witnessed either the signing of the will or the testator’s
acknowledgment of the signature or of the will and (B) understand
that the instrument they sign is the testator’s will.
(2) If a will was not executed in compliance with paragraph (1),
the will shall be treated as if it was executed in compliance with
that paragraph if the proponent of the will establishes by clear and
convincing evidence that, at the time the testator signed the will,
the testator intended the will to constitute the testator’s will.

6111. (a) A will that does not comply with Section 6110 is valid as
a holographic will, whether or not witnessed, if the signature and
the material provisions are in the handwriting of the testator.
(b) If a holographic will does not contain a statement as to the
date of its execution and:
(1) If the omission results in doubt as to whether its provisions
or the inconsistent provisions of another will are controlling, the
holographic will is invalid to the extent of the inconsistency unless
the time of its execution is established to be after the date of
execution of the other will.
(2) If it is established that the testator lacked testamentary
capacity at any time during which the will might have been executed,
the will is invalid unless it is established that it was executed at
a time when the testator had testamentary capacity.
(c) Any statement of testamentary intent contained in a
holographic will may be set forth either in the testator’s own
handwriting or as part of a commercially printed form will.

6111.5. Extrinsic evidence is admissible to determine whether a
document constitutes a will pursuant to Section 6110 or 6111, or to
determine the meaning of a will or a portion of a will if the meaning
is unclear.

6112. (a) Any person generally competent to be a witness may act as
a witness to a will.
(b) A will or any provision thereof is not invalid because the
will is signed by an interested witness.
(c) Unless there are at least two other subscribing witnesses to
the will who are disinterested witnesses, the fact that the will
makes a devise to a subscribing witness creates a presumption that
the witness procured the devise by duress, menace, fraud, or undue
influence. This presumption is a presumption affecting the burden of
proof. This presumption does not apply where the witness is a person
to whom the devise is made solely in a fiduciary capacity.
(d) If a devise made by the will to an interested witness fails
because the presumption established by subdivision (c) applies to the
devise and the witness fails to rebut the presumption, the
interested witness shall take such proportion of the devise made to
the witness in the will as does not exceed the share of the estate
which would be distributed to the witness if the will were not
established. Nothing in this subdivision affects the law that applies
where it is established that the witness procured a devise by
duress, menace, fraud, or undue influence.

6113. A written will is validly executed if its execution complies
with any of the following:
(a) The will is executed in compliance with Section 6110 or 6111
or Chapter 6 (commencing with Section 6200) (California statutory
will) or Chapter 11 (commencing with Section 6380) (Uniform
International Wills Act).
(b) The execution of the will complies with the law at the time of
execution of the place where the will is executed.
(c) The execution of the will complies with the law of the place
where at the time of execution or at the time of death the testator
is domiciled, has a place of abode, or is a national.

My last couple of posts have been about some simple options you can use if don’t have time to hire a California estate planning attorney to properly write your will. They are fine options but, as stated, you won’t know until after death if they worked out ok. Definitely having a specialist do your will is more suitable for most people. Again, I recommend your estate planning attorney be a Certified Specialist in Estate Planning, Trust and Probate law as determined by the State Bar of California Board of Legal Specialization.

However, what happens if you don’t hire an expert, you don’t employ a California statutory will and you do not write a handwritten will out? Then what? Well, that is where the laws of intestacy come in to play. The laws of intestacy are the rules for determining who should receive your estate if you don’t have a written plan. I like to say it’s the governor’s plan and he is planning how to distribute YOUR assets. To most people this does not make a lot of sense and thus they hire an estate planning attorney to get their will done properly.

Who gets the property according to the governor’s plan? It can be simple or complex depending on who dies when, what the family is, etc…. The general thought is that the assets would be distributed to the next of kin (or spouse) that most people would want to provide to; i.e. the “natural bounty.” However, what if I told you a “half blood” or half-sibling is treated as a whole!? That is true. Let’s say your dad had another child, out of wedlock, before he married your mom. At your death, if you don’t have kids or a spouse this half-blood could get a share of your estate. That is just one strange outcome that the laws of intestacy can impose.

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